To prevent the executive power from being able to oppress,
says baron Montesquieu, it is requisite that the armies
with which it is entrusted should consist of the people,
and have the same spirit with the people; as was the
case at Rome, till Marius new-modelled the legions by enlisting
the rabble of Italy, and laid the foundation of all
the military tyranny that ensued. Nothing then, according
to these principles, ought to be more guarded against in a
free state, than making the military power, when such a
one is necessary to be kept on foot, a body too distinct
from the people. Like ours therefore, it should wholly be
composed of natural subjects; it ought only to be enlisted
for a short and limited time; the soldiers also should live
intermixed with the people; no separate camp, no barracks,
no inland fortresses should be allowed. And perhaps
it might be still better, if, by dismissing a stated number
and enlisting others at every renewal of their term, a
circulation could be kept up between the army and the
people, and the citizen and the soldier be more intimately
connected together.

To keep this body of troops in order, an annual act of
parliament likewise passes, "to punish mutiny and desertion,
and for the better payment of the army and their
quarters." This regulates the manner in which they are to
be dispersed among the several inn-keepers and victuallers
throughout the kingdom; and establishes a law martial for
their government. By this, among other things, it is enacted,
that if any officer and soldier shall excite, or join
any mutiny, or, knowing of it, shall not give notice to the
commanding officer; or shall desert, or list in any other
regiment, or sleep upon his post, or leave it before he is
relieved, or hold correspondence with a rebel or enemy,
or strike or use violence to his superior officer, or shall
disobey his lawful commands; such offender shall suffer
such punishment as a court martial shall inflict, though it
extend to death itself.

However expedient the most strict regulations may be in
time of actual war, yet, in times of profound peace, a little
relaxation of military rigour would not, one should hope,
be productive of much inconvenience. And, upon this
principle, though by our standing laws (still remaining in
force, though not attended to) desertion in time of war is
made felony, without benefit of clergy, and the offence is
triable by a jury and before the judges of the common law;
yet, by our militia laws beforementioned, a much lighter
punishment is inflicted for desertion in time of peace. So,
by the Roman law also, desertion in time of war was punished
with death, but more mildly in time of tranquillity.
But our mutiny act makes no such distinction: for any of
the faults therein mentioned are, equally at all times, punishable
with death itself, if a court martial shall think
proper. This discretionary power of the court martial is
indeed to be guided by the directions of the crown; which,
with regard to military offences, has almost an absolute
legislative power. "His majesty, says the act, may form articles
of war, and constitute courts martial, with power to
try any crime by such articles, and inflict such penalties as
the articles direct." A vast and most important trust! an
unlimited power to create crimes, and annex to them any
punishments, not extending to life or limb! These are indeed
forbidden to be inflicted, except for crimes declared
to be so punishable by this act; which crimes we have just
enumerated, and, among which, we may observe that any
disobedience to lawful commands is one. Perhaps in some
future revision of this act, which is in many respects hastily
penned, it may be thought worthy the wisdom of parliament
to ascertain the limits of military subjection, and to
enact express articles of war for the government of the
army, as is done for the government of the navy: especially
as, by our present constitution, the nobility and gentry of
the kingdom, who serve their country as militia officers,
are annually subjected to the same arbitrary rule, during
their time of exercise.

One of the greatest advantages of our English law is,
that not only the crimes themselves which it punishes, but
also the penalties which it inflicts, are ascertained and notorious:
nothing is left to arbitrary discretion: the king by
his judges dispenses what the law has previously ordained; [Volume 3, Page 205]
but is not himself the legislator. How much therefore is it
to be regretted that a set of men, whose bravery has so
often preserved the liberties of their country, should be
reduced to a state of servitude in the midst of a nation of
freemen! for sir Edward Coke will inform us, that it is one
of the genuine marks of servitude, to have the law, which
is our rule of action, either concealed or precarious: "misera
est servitus, ubi jus est vagum aut incognitum." Nor is this
state of servitude quite consistent with the maxims of
sound policy observed by other free nations. For, the
greater the general liberty is which any state enjoys, the
more cautious has it usually been of introducing slavery in
any particular order or profession. These men, as baron
Montesquieu observes, seeing the liberty which others possess,
and which they themselves are excluded from, are apt
(like eunuchs in the eastern seraglios) to live in a state of
perpetual envy and hatred towards the rest of the community;
and indulge a malignant pleasure in contributing
to destroy those privileges, to which they can never be admitted.
Hence have many free states, by departing from
this rule, been endangered by the revolt of their slaves:
while, in absolute and despotic governments where there
no real liberty exists, and consequently no invidious comparisons
can be formed, such incidents are extremely rare.
Two precautions are therefore advised to be observed in
all prudent and free governments; 1. To prevent the introduction
of slavery at all: or, 2. If it be already introduced,
not to intrust those slaves with arms; who will then
find themselves an overmatch for the freemen. Much less
ought the soldiery to be an exception to the people in general,
and the only state of servitude in the nation.